Massachusetts Appeals Court

Commonwealth v. Marino

No. 12-P-1645.

COMMONWEALTH,
vs.
PAUL MARINO.

Appeals Court of Massachusetts.

Entered: April 23, 2014.

By the Court (Rapoza, C.J., Cypher & Fecteau, JJ.)

Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Paul Marino, appeals from his convictions by a District Court jury of larceny over $250, G. L. c. 266, § 30(1), and malicious destruction of property over $250, G. L. c. 266, § 127. We affirm the conviction of larceny over $250. On the charge of malicious destruction of property over $250, we reverse the judgment, set aside the verdict, and order judgment entered for the defendant.

Facts.

In the morning of April 18, 2011, a resident of the Sabbatia Landing condominium in Taunton saw the defendant and another man pushing an emergency generator up a ramp into a van. The generator had been disconnected from its normal location on a pad near the main entrance to the property. Accompanied by her husband, the resident asked the men what they were doing, and was told by the defendant that they were taking the generator and would bring another back later. When the defendant said he did not have a work order, the resident called Carlos Melo, the developer and trustee of the property, and put the defendant on the telephone with him. Melo asked the resident to call the police, and Melo called Joe Poillucci, the property manager, and asked him to investigate. A police officer arrived. After some conversation with the defendant, Melo, and Poillucci, the officer telephoned a company the defendant told him he took his orders from, but there was no answer. Not having obtained evidence that removal of the generator had been authorized, the officer took the defendant into custody. Charges of malicious destruction of property and larceny followed, and a trial was held in April, 2012. The Commonwealth principally alleged that the defendant removed the generator from its permanent location without authority, preparatory to taking it away. The defendant's case was that he was dispatched by Jennifer Egan, his wife, the owner of a general contracting business, to repair and possibly replace the generator, a job generated by one Matthew Blackburn.

Claims on appeal.

The defendant argues that (1) the charges in the complaint against him were fatally defective because they failed to identify the property or the damage that were the subjects of the charged crimes, and in any event, there was insufficient evidence to sustain both property offenses; (2) it was reversible error to allow expert testimony without prior notice; (3) it was error to allow police testimony that commented on the merit of his defense; (4) the judge misinstructed the jury; and (5) the judge predicated sentencing on impermissible factors.

We proceed to address these issues, although not in the order they appear in the defendant's brief.

Discussion.

1. The charged crimes.

The defendant was charged by complaint with larceny over $250 (G. L. c. 266, § 30[1]), and malicious destruction property of property over $250 (G. L. c. 266, § 127). The defendant complains that his `basic right to adequate notice of the charges against him' was violated because neither count in the complaint identified the property allegedly stolen or damaged. He asserts that both counts were fatally defective and should not have been permitted to proceed to trial.

This argument is raised for the first time on appeal. Our review, therefore, is limited to determining whether any error appears which resulted in a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, (1967). We must determine whether the complaint apprised the defendant of the nature of the charges against him, permitting him to prepare a defense. Commonwealth v. Hayes, 311 Mass. 21, 24-25 (1942). The defendant does not indicate that, prior to trial, he was surprised or confused by the charges, or that he requested a bill of particulars. He does not claim that he would have changed his defense in any way if the charges had specified the property as the emergency generator that was the subject of the trial. Compare Commonwealth v. Geane, (2001). While we discern no error, if there was error, it did not result in a substantial risk of a miscarriage of justice.

2. Sufficiency of the evidence.

The Commonwealth correctly concedes that the defendant's conviction of malicious destruction of property must be reversed and the verdict set aside because of insufficiency of the evidence. The evidence at trial was that any damage to the emergency generator was caused in the course of removing the generator from its mounting on the pad, and was not the result of an intent to inflict injury to the property. There is no indication that the defendant had the requisite state of mind for the charge of malicious destruction of property. Commonwealth v. Doyle,  (2013). Cf. Commonwealth v. Redmond, (2001). We do not agree with the defendant that there was insufficient evidence to support a charge of larceny. Contrary to the defendant's assertion that, at most, there was only evidence of an attempt, the generator had been disconnected from its electrical and fuel supplies and did not remain tethered to the mounting pad. It then was observed half way into the waiting van and was within the defendant's complete control. To meet the asportation requirement of the crime it only is necessary to show that the generator was removed from the owner's control to that of the defendant. Commonwealth v. Davis, 41 Mass.App.Ct. 901 (1996). `[S]eparation of the [generator] from the victim's dominion, even if brief in time and space, would be enough [to convict].' Commonwealth v. Fielding, (1976).

Also, there is no merit in the defendant's assertion that the Commonwealth failed to introduce evidence that the value of the generator at the time of the alleged larceny was in excess of $250. The jury were instructed that they must determine whether the value of the generator was more or less than $250 and so indicate in their verdict. Melo, the developer and trustee of the property, who stated that he knew the value of the buildings and property, testified that the value of the generator was `[a]pproximately $16,000.' The jury found the defendant guilty of larceny over $250. Cf. Commonwealth v. Hill, (2003).

3. Alleged improper admission of expert testimony.

The defendant argues that the judge improperly allowed the Commonwealth to use a witness as an expert without first giving advance notice to the defendant. After the jury had been empaneled, the prosecutor told the judge that he had obtained certain knowledge from a witness which he wanted to use in his opening statement. He stated that he had obtained this information from the witness only five minutes before empanelment and had notified defense counsel. The witness was Joseph Poillucci, the owner of the property management company serving the Sabbattia Landing condominium in this case, who would testify on his observations of how the generator was disconnected from its electrical and fuel supplies.

The defendant argues Poillucci's testimony formed the only basis, not presented by lay knowledge, on which the jury could have concluded that the generator was rendered unusable by the manner in which it was disconnected, thereby vouching for the prosecution's version of events. There is no merit in this argument. Poillucci's testimony did not touch upon any matters requiring expert testimony to aid the jury in interpreting his observations that the electrical line and the fuel gas line to the generator had been crudely cut and that the generator was loaded into the van in a crude and ad hoc manner, which was inconsistent with either repair of the generator or replacement with another generator.

The judge offered defense counsel a mistrial or a continuance, but counsel declined and accepted the remedy that Poillucci testify as a percipient witness and `nothing more.' The defendant fails to show how he was prejudiced by this late disclosure. Cf. Commonwealth v. Cundriff,  (1980); Commonwealth v. Carney, (2010).

Next, the defendant asserts he was further prejudiced when the police officer was permitted, over his objection, to opine on the ultimate issue of mistake in the case. In cross-examination of the investigating police officer, defense counsel repeatedly sought to elicit from him that when he began his investigation, he believed the defendant's removal of the generator was based on a mistake. On redirect examination, the prosecutor sought to show that the officer did not hold that opinion after his investigation:

Q. `At the conclusion of your investigation, after speaking with Mr. Melo and Mr. Poillucci, were you of the opinion that there could be some mistake?' A. `No.'

Because the defense was one of mistake, the defendant asserts the officer improperly commented on the ultimate issue in the case. We do not agree that the officer's answers constituted improper testimony on the defendant's guilt or innocence. The jury could have interpreted the answers as simply indicating how the officer gathered information in proceeding with his investigation. Compare Commonwealth v. Hamilton, (2011).

4. Alleged errors in sentencing.

The defendant broadly asserts that the judge's conduct and remarks at sentencing were improper, claiming that the judge `bought into the prosecutor's improper arguments.' For reasons which are apparent from our review of the sentencing proceedings, we think the judge did not base his sentences on any impermissible factors or other conduct of the defendant outside the charged crimes.

Following trial, the Commonwealth moved for sentencing. The prosecutor noted that the judge suggested he would like more information regarding a Federal conviction on which the defendant was then serving a sentence. The judge stated he did not want a probation presentencing investigation because he `pretty much' knew what he would do, and stated that any sentence imposed would be from and after the Federal sentence the defendant was serving.

The prosecutor stated he would seek a two and one-half year house of correction sentence for count 2 (malicious destruction of property) followed by a two-year sentence for count 1 (larceny) with eighteen months to be served, and the balance suspended with extended probation. He also would seek restitution of $1,000 to compensate the condominium association for the deductible it was charged when its insurer paid $16,000 for damage to the generator. The judge commented, `[T]hat's the least sentence I'm talking about.' The hearing was postponed for a few days to allow the Commonwealth to obtain more information on the Federal matters.

At the hearing held on May 25, 2012, the prosecutor recommended a two and one-half year house of correction sentence, committed, on count 2; and a two-year house of correction sentence for count 1, to be served on and after count 2, eighteen months to be served, and the balance suspended for five years. The prosecutor stated the basis of the Commonwealth's recommendation was `the nature of the defendant's crime' — stealing a `very valuable piece of equipment, a generator, from a condominium complex.'

The prosecutor then gave the judge a summary of a Federal sentencing memorandum which he had obtained from the United States Attorney for the Southern District of New York as well as other charges, after which the judge concluded that the defendant had been `a lifelong thief and con-man.' He further stated that the defendant `ought to be sentenced, perhaps in a perfect world, to state prison, [but] that is not what is available to us.' The prosecutor further recommended that the defendant be ordered to pay restitution of $1,000 to the condominium association and $16,613.22 to the insurer.

Following additional discussions, which included defense counsel, and comments on whether the defendant should have been indicted, the judge stated, `Let's move on.'

Defense counsel argued, as in his motions for a required finding, that this was not a malicious destruction of property case, and if restitution were to be ordered that it should be restricted to the deductible, and that the judge should not order compensation for the insurer who was not a party in the case.

Defense counsel acknowledged that the defendant `has an extensive criminal record,' and argued the judge should not `go beyond that to get to un-convicted allegations to try and support a sentence in this case.' Counsel asked for sentencing to the house of correction in Plymouth County to allow for contact visits with the defendant's wife and ten month old child.

The judge responded:

`This man has shown no mercy for anybody including his own family, who lied on the stand on his behalf. This is probably one of the worst scams that I've ever seen in my 20 years on the bench. He's a liar, he's a thief, and I don't have any compassion for him, and I'm sorry, and I don't believe anything he says.'

The judge concluded the hearing by not acting on the request for restitution of $1,000, and without further comment imposed a two and one-half year sentence on count 2 and a two-year sentence in a house of correction on count 1, essentially the sentences earlier recommended by the prosecutor, agreeing that they should be served at the conclusion of the Federal sentence. He declined to recommend where they should be served.

While the judge's comments quoted above would have better been left unsaid, they appear to have been made after his earlier indication that he likely would impose at a minimum the sentences recommended. His decision does not appear to have been influenced by the Federal memorandum or other charges presented by the prosecutor.

Conclusion.

On the count charging malicious destruction of property over $250, the judgment is reversed, the verdict is set aside, and judgment is to enter for the defendant. On the count charging larceny over $250, the judgment is affirmed.

So ordered.

FootNotes

1. During all the following events, the other man remained out of view.

2. Because we conclude that the conviction of malicious destruction of property must be vacated, it is not necessary to address the defendant's argument that the judge's instructions permitted the jury to convict him of two distinct crimes based on the same, speculative replacement value of the same item, rather than the cost of repairs for damage on the charge of malicious destruction of property over $250.

3. The property manager testified that `[t]he generator was no longer sitting on the pad that it belongs on; instead it was, I would say, half into a white van that had doors open to the back of it, . . . and the generator was on its way being loaded at an angle going into the van.' The observations of Melo and the police officer were substantially identical — that the generator had been moved from its pad and was half way into the van.

4. At the end of the trial, the judge read to the jury a stipulation of the parties that the man who remained out of view when the police began their investigation (see note 1, supra), had been identified as Matthew Blackburn, named a codefendant, who was in default for a failure to appear at trial.

5. The defendant asserts that he was penalized in presenting his defense by two comments the judge made to the jury. In the first, made during empanelment, the judge told the jurors not to make any decision `until you've heard both sides of the story.' In the second instance, the judge told the jury `you may want to take a hard look' at documents the prosecutor submitted in the Commonwealth's rebuttal case. Neither comment can be construed as prejudicial to the defendant.